Regular and special assessments levied pursuant to an association’s governing documents are delinquent fifteen (15) days after they become due, unless the CC&Rs provide for a longer time period, in which case the longer time period applies. (Civ. Code § 5650(b).) When an assessment is delinquent, an association may recover all of the following from the delinquent member:
Late Charge – A late charge not to exceed ten percent (10%) of the delinquent assessment or ten dollars ($10), whichever is greater (unless the CC&Rs specify a lesser amount, in which case the lesser amount applies);
Interest – Interest on the delinquent assessment and the collection fees and costs (including reasonable attorney’s fees) incurred by the association, at an annual interest rate not to exceed twelve percent (12%), commencing thirty (30) days after the assessment becomes due (unless the CC&Rs specify a lesser interest rate, in which case the lesser interest rate applies); and
Collection Costs – Reasonable collection fees and costs incurred in collecting the delinquent assessment (including reasonable attorney’s fees). (Civ. Code § 5650(b)(1)-(3); See also “Collection Fees & Costs.”)
No Interest on Unpaid Monetary Penalties (Fines) Civil Code Section 5725 prohibits an association from characterizing or treating an unpaid monetary penalty (fine) “imposed by the association as a disciplinary measures for failure of a member to comply with the governing documents, except for late payments” as a delinquent assessment. Therefore, the authority to impose interest in connection with delinquent assessments does not extend to such unpaid monetary penalties.
Interest on Unpaid Reimbursement Assessments Reimbursement assessments (aka “compliance assessments”) refer to special assessments levied against an individual member’s separate interest to reimburse the association for its costs incurred in repairing damage to the common area caused by that member, his guest or tenant. (See “Reimbursement & Compliance Assessments.”) Where an association’s CC&Rs allow for the imposition of reimbursement assessments as a form of special assessment, the association may be able to impose interest on a delinquent reimbursement assessment pursuant to Civil Code Section 5650(b).
Where the CC&Rs do not contain provisions addressing reimbursement assessments, Civil Code Section 5725(a) allows the board to impose them in the form of “monetary charges.” However, Civil Code 5725(a) does not explicitly address whether such “monetary charges” may be characterized or treated as assessments for which the association may charge interest pursuant to Civil Code Section 5650(b).
In addition to late charges and interest, an association is permitted to charge its “[r]easonable costs incurred in collecting [a] delinquent assessment” from a member, “including reasonable attorney’s fees.” (Civ. Code § 5650(b)(1).) Those collection fees and costs, late fees, and interest are then incorporated into the member’s debt, and may be secured through recording an assessment lien against the member’s property. (Civ. Code §§ 5650(a), 5675(a);See also “Duty to Pay Assessments.”)
Fees Imposed by Management & Collection Vendors Civil Code Section 5600(b) prohibits an association from imposing or collecting a fee “that exceeds the amount necessary to defray the costs for which it is levied.” However, this restriction applies to associations, not their managing agents or collection vendors. An association’s management company or collection vendor is permitted to earn a profit on the collection fees it charges for generating pre-lien letters, assessment liens, etc.:
“…the duty to refrain from the conduct prohibited by [Section 5600(b)] is imposed solely on the ‘association,’ the nonprofit entity designated by statute as having the responsibility to manage the affairs of the common interest development. [Section 5600(b)] has no application to an association’s vendors…the [association’s managing agent] is not prohibited from earning a profit, or from charging any fee the competitive market will bear.” (Brown v. Professional Community Management, Inc. (2005) 127 Cal.App.4th 532, 539-540.)
Notice of Delinquent Assessment (“Assessment Lien”) Assessment payments become the legal debt of the owner at the time the assessments are levied by the association. (Civ. Code § 5650; See also “Duty to Pay Assessments.”) Where the owner fails to remit payment within a timely fashion, an association’s governing documents allow for the association to record a Notice of Delinquent Assessment (an “assessment lien”) against a member’s property to act as security for the payment of the member’s assessment debt. (Civ. Code § 5675(a).) The assessment lien effectively prevents the member from transferring title to the member’s property and potentially from re-financing the property without first satisfying the member’s assessment debt and having the assessment lien released.
Abstract of Judgment (“Judgment Lien”) An abstract of judgment (a “judgment lien”) is a court-ordered lien that is placed upon a judgment debtor’s property. Where an owner fails to pay assessments and/or monetary penalties imposed by an association, the association may file a lawsuit against a member in Small Claims or Superior Court (depending upon the amount owed) and obtain a money judgment for that amount. The association will then record an abstract of judgment to secure the judgment debt in the event the member refuses to pay the judgment amount. (See “Money Judgments (Assessment Collection).”)
The architectural control provisions of an association’s governing documents may permit the association to, in extraordinary circumstances, issue a member a variance from compliance with one or more of the association’s architectural standards. An association’s decision to issue a variance has been held to be analogous to the issuance of a zoning variance by an administrative agency, and must therefore be limited to unique and extraordinary circumstances where substantial evidence would justify the desired variance:
“In the zoning context as well as here, a departure from the master plan in the Declaration stands to affect most adversely those who hold rights in neighboring property. Hence, what the California Supreme Court has stated with regard to judicial review of grants of variances applies equally well to the Association’s actions herein: ‘[C]ourts must meaningfully review grants of variances in order to protect the interests of those who hold rights in property nearby the parcel for which a variance is sought. A zoning scheme, after all, is similar in some respects to a contract; each party foregoes rights to use its land as it wishes in return for the assurance that the use of neighboring property will be similarly restricted, the rationale being that such mutual restriction can enhance total community welfare. [Citations.] If the interest of these parties in preventing unjustified variance awards for neighboring land is not sufficiently protected, the consequence will be subversion of the critical reciprocity upon which zoning regulation rests.’ (Topanga Assn. for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506, 517-518 [113 Cal.Rptr. 836, 522 P.2d 12].) For nearly identical reasons, we conclude that the courts must be available to protect neighboring property interests from arbitrary actions by homeowner associations.” (Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 652.)
Variance Requirements Subject to any additional restrictions or requirements in an association’s governing documents, an architectural variance may typically be issued where:
Extraordinary circumstances exist that justify the variance. Association governing documents often describe such extraordinary circumstances as those involving topography, natural obstructions, hardship or other environmental considerations;
The variance is not in conflict with the governing documents; and
Proper notice is provided. Such notice may include notice to: (a) applicable city or county building departments (i.e., if the variance involves setbacks or building code issues), (b) the board of directors (i.e., in situations where the body issuing the variance is separate from the board, such as an architectural committee), and (c) surrounding homeowners.
The Americans with Disabilities Act (ADA) contains various requirements pertaining to the accessibility, construction and operation of commercial facilities and places of “public accommodation.” Associations are private communities and are generally not subject to ADA requirements. (See Indep. Housing Servs. Of San Francisco v. Fillmore Center Assocs. (N.D. Cal 1993) 840 F.Supp. 1328, 1344 fn. 14: (“…the legislative history of the ADA clarifies that ‘other place of lodging’ does not include residential facilities.”).) However, the ADA may apply to certain areas of an association that are open to the public, including areas such as a “sales or rental office receiving public traffic, or commercial facilities that are part of a residential project.” (Carolyn v. Orange Park Community Assn. (2009) 177 Cal.App.4th 1090, 1103; See also Coronado v. Cobblestone Village Community Rentals (2009) 163 Cal.App.4th 831; See also “Americans with Disabilities Act (ADA).”)
Modifications to Units & Common Area Notwithstanding the foregoing, Civil Code Section 4760 allows for a member within an association to “[m]odify the member’s [unit], at the member’s expense, to facilitate access for persons who are blind, visually handicapped, deaf, or physically disabled, or to alter conditions which could be hazardous to these persons.” (Civ. Code § 4760(a)(2).) Such modifications may include “modifications of the route from the public way to the door of the [unit] [(i.e., to the common area)] if the [unit] is on the ground floor or already accessible by an existing ramp or elevator.” (Civ. Code § 4760(a)(2).)
The member’s right to perform such modifications to the member’s unit or to the common area route to the door of the unit are subject to the following conditions:
The modifications must comply with applicable building code requirements;
The modifications must be consistent with the association’s governing documents with respect to safety or aesthetics;
Modifications to the exterior of the unit must not prevent reasonable passage by other residents, and must be removed by the member when the unit is no longer occupied by the disabled persons requiring the modifications; and
The member must submit plans and specifications to the association for review prior to constructing the modifications, in order for the association to determine whether the modifications will be consistent with the requirements under Civil Code Section 4760(a). The association may not deny approval of the proposed modifications “without good cause.” (Civ. Code § 4760(a)(2)(A)-(D).)
An association’s governing documents (i.e., architectural standards) may not prohibit, or include conditions that have the effect of prohibiting, “the use of low water-using plants as a group or as a replacement of existing turf.” (Civ. Code § 4735(a)(1).) Additionally, the governing documents may not have the effect of prohibiting or restricting compliance with either:
Any regulation or restriction on the use of water adopted pursuant to Section 353 or 357 of the Water Code. (Civ. Code § 4735(a)(3).)
Civil Code Section 4735 also restricts an association’s ability to fine homeowners for failing to water their landscaping during government-declared drought periods. (See “Watering During Droughts.”)
Artificial Turf (Artificial Grass)
Homeowners within associations have rights to install artificial turf (artificial grass) on their properties regardless of any provisions in an association’s governing documents to the contrary. (See “Artificial Turf (Artificial Grass).”)
“Any covenant, restriction, or condition contained in any deed, contract, security instrument, or other instrument affecting the transfer or sale of, or any interest in, real property, and any provision of a governing document, as defined in Section 4150 or 6552, that effectively prohibits or restricts the installation or use of a solar energy system is void and unenforceable.” (Civ. Code § 714(a).)
A “solar energy system” means either of the following:
Any solar collector or other solar energy device whose primary purpose is to provide for the collection, storage, and distribution of solar energy for space heating, space cooling, electric generation, or water heating; or
Any structural design feature of a building, whose primary purpose is to provide for the collection, storage, and distribution of solar energy for electricity generation, space heating or cooling, or for water heating. (Civ. Code §§ 714(d)(2), 801.5(a)(1)-(2).)
“Reasonable Restrictions” Permitted Civil Code Section 714(b) permits “reasonable restrictions” on the installation or use of solar energy systems. Reasonable restrictions on solar energy systems are “those restrictions that do not significantly increase the costs of the system or significantly decreases its efficiency or specified performance, or that allow for an alternative system of comparable cost, efficiency, and energy conservation benefits.” (Civ. Code § 714(b).)
The term “significantly” has different meanings depending on the type of solar energy system being used (i.e., whether it is solar panels or a solar water heating system):
Photovoltaic Systems (Solar Panels): $1000 Cost Increase or 10% Efficiency Reduction
For photovoltaic systems (solar panels) that comply with state and federal law, “significantly” means:
“an amount not to exceed one thousand dollars ($1,000) over the system cost as originally specified and proposed,” or
“a decrease in the system efficiency of an amount not exceeding 10 percent as originally specified and proposed.” (Civ. Code § 714(d)(1)(B).)
Solar Water Heating Systems: 10%/$1,000 Cost Increase or 10% Efficiency Reduction
For “solar domestic water heating systems or solar swimming pool heating systems” that comply with state and federal law, “significantly” means:
“an amount exceeding 10 percent of the cost of the system, but in no case more than one thousand dollars ($1,000),” or
“decreasing the efficiency of the solar energy system by an amount exceeding 10 percent, as originally specified and proposed.” (Civ. Code § 714(d)(1)(A).)
Application & Timeline for Approval: 45 Day Maximum
Where association approval for the installation or use of a solar energy system is required, the application must be processed and approved in a manner consistent with that utilized for approving an application for modifications to the owner’s property. (Civ. Code § 714(e)(1); See also “Architectural Application & Approval Process.”) Approval or denial must be in writing. If no approval or denial is received within forty-five (45) days from the date of receipt of the application, the application will be deemed approved unless the delay is due to a reasonable request for the owner to provide additional information. (Civ. Code § 714(e)(2)(A)-(B).)
Additionally, Civil Code Section 714.1(b) allows an association to impose reasonable provisions that require the owner to obtain association approval for the installation of a solar energy system in a separate interest owned by another.
System & Owner Requirements
The solar energy system proposed by an owner must:
Meet applicable health and safety standards and requirements imposed by state and local permitting authorities, consistent with Government Code Section 65850.5;
For solar water heating systems, the system must be certified by an accredited listing agency as defined in the Plumbing and Mechanical Codes; and
Additionally, Civil Code Section 714.1 allows an association to impose reasonable provisions which:
Restrict the installation of solar energy systems installed in common areas to those systems approved by the association;
Require the owner of a separate interest to obtain the approval of the association for the installation of a solar energy system in a separate interest owned by another;
Provide for the maintenance, repair, or replacement of roofs or other building components; and/or
Require installers of solar energy systems to indemnify or reimburse the association or its members for loss or damage caused by the installation, maintenance, or use of the solar energy system. (Civ. Code § 714.1(a)-(d).)
Solar Energy Systems Installed in Common Area Civil Code Section 4746 grants owners rights to install solar energy systems on common area roofs, garages and carports, subject to certain limitations discussed below.
Association Requirements
When reviewing a request to install a solar energy system on a multifamily common area roof shared by more than one homeowner, the association must require (Civ. Code § 4746(a)):
that the applicant/owner notify each owner of a unit in the building sharing the roof of the application, and
the owner and each successive owner to maintain a homeowner liability coverage policy at all times and provide the association with the corresponding certificate of insurance within 14 days of approval of the application and annually thereafter.
Reasonable Restrictions Which May be Imposed
When reviewing a request to install a solar energy system on a common area roof as described above, the association may also impose reasonable provisions which (Civ. Code § 4746(b)):
require the applicant to submit a solar site survey showing the placement of the solar energy system, which also includes a determination of the equitable allocation of the usable solar roof area among all owners sharing the same roof, garage or carport;
require the owner and each successive owner of the solar energy system to be responsible for costs of (i) damage to the common area, exclusive use common area or separate interests resulting from the installation, maintenance repair, removal or replacement of the system, (ii) costs of maintenance, repair and replacement of the system until it has been removed and for the restoration of the area after removal; and
require the owner to disclose to prospective buyers the existence of the owner’s system and his corresponding responsibilities described above.
Aesthetic Considerations
In reviewing an application for a proposed solar energy system, an association is permitted to consider the aesthetic impacts of the proposed system, provided that such consideration does not violate Civil Code Section 714’s requirements with regard to “significant” increases in the system’s costs or decreases in the system’s efficiency or specified performance:
“Nothing in the language of section 714 prohibits the consideration of aesthetic impacts. To the contrary, the provision in section 714 that “the application for approval shall be processed and approved by the appropriate approving entity in the same manner as an application for approval of an architectural modification to the property” indicates that the Legislature specifically anticipated that an evaluation of a proposed solar energy system–just as any other proposed improvement–would involve the consideration of aesthetics.” (Tesoro del Valle Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 633.)
No Requirement for Association to Propose Alternative System
If an association justifiably denies an application for a proposed solar energy system, the association is not required to then propose a comparable alternative system that would satisfy the association’s approval requirements:
“We are likewise unpersuaded by [the homeowners’] argument that [the association] had the burden to propose a comparable alternative system at the time it denied [the homeowners’] application. Again, nothing in the language of section 714 imposes such a burden on a homeowners association. The statute requires only that the denial of a solar energy system application be in writing and in a timely manner. (§ 714, subd. (e)(2).) Nor do the CC&R’s or Design Guidelines require that the [association] redesign a solar energy system that fails to garner approval. Instead, the burden is on the homeowner to submit an application that is complete and sufficient to generate approval…once the [association] informed [the homeowners] of the bases of its denial, it was [the homeowners’] burden to reapply for approval of a solar energy system utilizing an application that satisfied the procedural requirements in the CC&R’s and that addressed the [association’s] concerns about location, safety and aesthetics.” (Tesoro del Valle Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 633.)
Violation & Enforcement of Section 714
An association that “willfully violates” the requirements of Civil Code Section 714 is liable to the applicant or other party for actual damages and a civil penalty in an amount not to exceed one thousand dollars ($1,000.00). (Civ. Code § 714(f).) In an action to enforce compliance with Civil Code Section 714, the “prevailing party shall be awarded reasonable attorney’s fees.” (Civ. Code § 714(g).)
“A covenant, restriction or condition contained in any deed, contract, security instrument or other instrument affecting the transfer or sale of any interest in a common interest development, and any provision of a governing document, as defined in Section 4150, that either effectively prohibits or unreasonably restricts the installation or use of an [EV] charging station within an owner’s unit or in a designated parking space, including, but not limited to, a deeded parking space, a parking space in an owner’s exclusive use common area, or a parking space that is specifically designated for use by a particular owner, or is in conflict with [Section 4745], is void and unenforceable.” (Civ. Code § 4745(a).)
“Reasonable Restrictions” Permitted Civil Code Section 4745 permits “reasonable restrictions” on the installation or use of an EV charging station. A “reasonable restriction” is defined as a restriction that does “not significantly increase the cost of the station or significantly decrease its efficiency or specified performance.” (Civ. Code § 4745(b)(2).)
Application & Timeline for Approval
Where association approval for the installation or use of an EV charging station is required, the application must be processed and approved in a manner consistent with that utilized for approving an application for modifications to the owner’s property. (Civ. Code § 4745(e);See also “Architectural Application & Approval Process.”) Approval or denial must be in writing, and must not be willfully avoided or delayed. If no approval or denial is received within sixty (60) days of submission, the application will be deemed approved unless the delay is due to a reasonable request for the owner to provide additional information. (Civ. Code § 4745(e).)
Common Area or Exclusive Use Common Area; Approval Requirements
Where an owner intends on installing an EV charging station within common area or exclusive use common area (i.e., the owner’s designated exclusive use parking space), the owner must first obtain approval from the association. The association must approve the installation if the owner agrees in writing to do all of the following:
Provide a certificate of insurance within fourteen (14) days of approval; and
Pay for the electricity usage costs associated with the use of the EV charging station, as well as the costs associated with the installation of the station. (Civ. Code § 4745(f)(1)(A)-(D).)
The EV charging station must also meet “applicable health and safety standards and requirements imposed by state and local authorities, and all other applicable zoning, land use, or other ordinances, or land use permits.” (Civ. Code § 4745(c).)
Exclusive (“Private”) Use EV Charging Station on Common Area
Installation of an EV charging station in a common area (not within an exclusive use common area parking space) for the exclusive (or “private”) use of a particular owner must be allowed by the association “only if installation in the owner’s designated parking space is impossible or unreasonably expensive.” (Civ. Code § 4745(g).) Under such circumstances, the association is required to “enter into a license agreement with the owner for the use of the space in a common area, and the owner shall comply with all” of the approval requirements listed above. (Civ. Code § 4745(g).)
Open (“Public”) Use EV Charging Station on Common Area
The association or owners may install an EV charging station in common area for the use of all members of the association. In such cases, the association is required to “develop appropriate terms of use for the charging station.” (Civ. Code § 4745(h).)
Creation of New Parking Space
An association is permitted to create a new parking space where one did not previously exist in order to facilitate the installation of an EV charging station. (Civ. Code § 4745(i).)
Common Area Access for Utility Lines or Meters Civil Code Section 4600 restricts the degree to which a board may grant exclusive use of any portion of the association’s common area to a member. (See “Granting Exclusive Use of Common Area.”) Those limitations do not apply to a grant of exclusive use that is needed:
“to install and use an [EV] charging station in an owner’s garage or a designated parking space that meets the requirements of Section 4745, where the installation or use of the charging station requires reasonable access through, or across, the common area for utility lines or meters.” (Civ. Code § 4600(b)(3)(H).); or
“to install and use an [EV] charging station through a license granted by an association under Section 4745.” (Civ. Code § 4600(b)(3)(I).)
Owner Responsibilities
The owner (and each successive owner) of an EV charging station is responsible for all of the following:
Any cost associated with damage to the EV charging station, common area, exclusive use common area, or separate interests resulting from the installation, maintenance, repair, removal, or replacement of the EV charging station;
Any cost associated with the maintenance, repair, and replacement of the EV charging station, and any cost associated with removing the EV charging station, including the restoration of the common area after removal;
The electricity cost associated with the use the EV charging station; and
Insurance Requirement
The owner of an EV charging station, regardless of whether it is installed in the owner’s unit or in the common area, is required to “at all times, maintain a liability coverage policy. The owner that submitted the application to install the charging station shall provide the association with the corresponding certificate of insurance within 14 days of approval of the application. That owner and each successor owner shall provide the association with the certificate of insurance annually thereafter.” (Civ. Code § 4745(f)(3).)
Violation & Enforcement of Section 4745
An association that “willfully violates” the requirements of Civil Code Section 4745 is liable to the applicant or other party for actual damages and a civil penalty in an amount not to exceed one thousand dollars ($1,000.00). (Civ. Code § 4745(j).) In any action “by a homeowner requesting to have an [EV] charging station installed and seeking to enforce compliance with [Civil Code Section 4745], the prevailing plaintiff shall be awarded reasonable attorney’s fees.” (Civ. Code § 4745(k).)
EV-Dedicated TOU (time of use) Meters Effective January 1, 2019, new Section 4745.1 was added to the Civil Code as a result of SB 1016. Section 4745.1 basically extends much of Section 4745’s requirements associated with the installation and use of EV charging stations to the installation and use of EV-dedicated “TOU” (time of use) meters. An EV-dedicated TOU meter is an electric meter supplied and installed by an electric utility, that is (a) separate from, and in addition to, any other electric meter, (b) is devoted exclusively to the charging of EVs, and (c) that tracks the time of use when charging occurs. (Civ. Code § 4745.1(d).)
The Americans with Disabilities Act of 1990 (ADA), 42 USC §§ 3601-3631, was enacted by the U.S. Congress. It provides broad civil rights protections to persons with defined disabilities. Those protections prohibit, under certain circumstances, discrimination on the basis of disability similar to those which prohibit discrimination on the basis of race, national origin, sex and religion.
Public Accommodations
Title III of the ADA addresses discrimination in areas of public accommodations and commercial facilities. It provides that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” (42 U.S.C. §1282(a).) Under most circumstances, the residential and recreational facilities of a private common interest development do not constitute places of “public accommodation” which would be subject to ADA requirements. Those facilities are not “designed and intended to provide services, goods, privileges to members of the public, usually in exchange for payment (and when not requiring payment, often motivated by some other advantage to the entity providing the accommodation, such as promoting its good will to the community.).” (Carolyn v. Orange Park Community Association (2009) 177 Cal.App.4th 1090, 1104.)
There are, however, facilities within a common interest development that may be held to be places of public accommodation. Those facilities include:
A sales or rental office receiving public traffic;
Commercial facilities that are part of a residential project;
A meeting room leased to the general public for a fee, but not one used solely by association members;
A swimming pool, tennis court, or other recreational facility that is open to members of the general public; and
Day care centers, senior citizen centers, refreshment stands, and meeting rooms that are occasionally rented to business or civic groups. (Carolyn v. Orange Park Community Assn.(2009) 177 Cal.App.4th 1090, 1103.)
Public Use of Private Common Area Facilities
A common interest development’s common area facilities (i.e., parking lots, swimming pools, equestrian trails, etc.) which are not open to members of the general public are not places of public accommodation that are subject to ADA requirements. Additionally, those facilities do not “transform into public accommodations merely because [the association] does not actively exclude members of the public from using [them].” (Carolyn v. Orange Park Community Assn.(2009) 177 Cal.App.4th 1090, 1104.)
Accommodations For Disabled Residents
A private homeowners association may be required to allow a disabled resident to make alterations to the resident’s unit or to the association’s common area at the resident’s expense in order to accommodate the resident’s disability. (See “Architectural Accommodations for Disabled Residents.”)
An association’s governing documents may require association approval before a member may make a physical improvement or modification to the member’s property or to common area. In such cases, the association adopts an architectural application and approval process for members to utilize, and to assist the association in administering its architectural standards. The responsibility for reviewing and approving or disapproving a member’s architectural application is commonly delegated to an architectural committee that is separate from the board.
Procedural Requirements
When reviewing and approving or disapproving a member’s architectural application, the association must provide a “fair, reasonable and expeditious procedure for making its decision.” (Civ. Code § 4765(a)(1).) That procedure must:
Be included in the association’s governing documents (i.e., in its CC&Rs or operating rules);
Provide for prompt deadlines; and
State the maximum time for the association to issue a response to the member’s architectural application or a request for the board to reconsider a disapproved application. (Civ. Code § 4765(a)(1).)
The association must provide its members with annual notice of its architectural approval requirements. (See “Annual Policy Statement.”) The notice must describe the types of improvements/modifications that require association approval, and include a copy of the association’s architectural application and approval process. (Civ. Code § 4765(c).)
Decision Requirements
Any decision regarding a member’s architectural application must:
Not be in conflict with any “governing provision of law” (e.g., Fair Employment and Housing Act, building codes, laws governing land use or public safety, etc.). (Civ. Code § 4765(a)(3).); and
If an application is disapproved (rejected), the written decision must include both an explanation of why the application was disapproved and a description of the procedure through which the member may request reconsideration of the decision by the board. (Civ. Code § 4765(a)(4).)
Disapproval & Reconsideration (Appeal)
Where a member’s application is disapproved, the member is generally entitled to reconsideration by the board at an open meeting of the board. (Civ. Code § 4765(a)(5).) However, if the initial disapproval of the application was made by the board “or a body that has the same membership as the board” at a duly held board meeting, no reconsideration is required. (Civ. Code § 4765(a)(5).)
Scope of Approval Powers An association’s architectural committee and board do not have the authority to approve the construction of improvements which are expressly prohibited by the provisions of the association’s CC&Rs. (Woodridge Escondido Property Owners Assn. v. Nielsen (2005) 130 Cal.App.4th 559, 572.) Where the improvement is not expressly prohibited by the CC&Rs or other provisions of the association’s governing documents, approval will often depend upon (a) whether the improvement is aesthetically harmonious with surrounding structures and (b) whether it will pose a burden on neighboring owners or the association.
